Standards Improvement Project-Phase II, 1112-1144 [04-28221]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Rules and Regulations]
[Pages 1112-1144]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-28221]



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Part V





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1910, 1915, and 1926



Standards Improvement Project-Phase II; Final Rule

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / 
Rules and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, and 1926

[Docket No. S-778-A]
RIN 1218-AB 81


Standards Improvement Project-Phase II

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) 
through this final rule is continuing to remove and revise provisions 
of its standards that are outdated, duplicative, unnecessary, or 
inconsistent, or can be clarified or simplified by being written in 
plain language. The Agency completed Phase I of the Standards 
Improvement Project in June 1998. In this Phase II of the Standards 
Improvement Project, OSHA is again revising or removing a number of 
health provisions in its standards for general industry, shipyard 
employment, and construction. The Agency believes that the changes 
streamline and make more consistent the regulatory requirements in OSHA 
health and safety standards. In some cases, OSHA has made substantive 
revisions to requirements because they are outdated, duplicative, 
unnecessary, or inconsistent with more recently promulgated health 
standards. The Agency believes these revisions will reduce regulatory 
requirements for employers without reducing employee protection.

DATES: The final rule becomes effective March 7, 2005.

ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates 
the Associate Solicitor of Labor for Occupational Safety and Health, 
Office of the Solicitor of Labor, Room S-4004, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive 
petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: Michael Seymour, Director, Office of 
Physical Hazards (202) 693-1950. For additional copies of this Federal 
Register document: OSHA, Office of Publications, Room N-3101, U. S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 
(telephone: (202) 693-1888). Electronic copies of this Federal Register 
document, as well as news releases and other relevant documents, are 
available at OSHA's homepage at https://www.osha.gov.

SUPPLEMENTARY INFORMATION: References to comments and testimony in the 
rulemaking record are found throughout the text of the preamble. 
Comments are identified by an assigned exhibit number as follows: ``Ex. 
5-1'' means Exhibit 5-1 in Docket S-778-A. For quoted material in the 
preamble, the page number where the quote can be located is included if 
other than page one. The transcript of the public hearing is cited by 
the page number as follows: Tr. 59. A list of the exhibits, copies of 
the exhibits and transcripts of the hearing are available in the OSHA 
Docket Office under Docket S-778-A and at OSHA's homepage.

I. Background

    OSHA has made a continuing effort to eliminate confusing, outdated, 
and duplicative standards and regulations. In 1978, 1984, and again in 
1996, the Agency conducted revocation and revision projects that 
resulted in the elimination of hundreds of unnecessary provisions.
    In 1996, OSHA proposed Phase I of the Standards Improvement Project 
which set forth changes to a number of provisions in regulations and 
standards that were outdated, duplicative, unnecessary, inconsistent, 
or could be clarified or simplified by being rewritten in plain 
language (61 FR 37849, July 22, 1996). In 1998, OSHA published the 
final rule, Phase I of the Standards Improvement Project (63 FR 33450, 
June 19, 1998). Substantive changes were made under section 6(b) 
generally and under 6(b)(7) of the Occupational Safety and Health Act 
of 1970 which provides that:

    The Secretary, in consultation with the Secretary of Health, 
Education, and Welfare, may by rule promulgated pursuant to section 
553 of title 5, United States Code, make appropriate modifications 
in the requirements relating to the use of labels or other forms of 
warning, monitoring or measuring, and medical examinations, as may 
be warranted by experience, information, or medical or technological 
developments acquired subsequent to the promulgation of the relevant 
standard.

    The Agency believed that the revisions to its health and safety 
standards in that final rule reduce the regulatory burden of employers 
enhancing compliance while maintaining the safety and health protection 
afforded to employees.
    In a related effort in 1996, OSHA published a proposal to revise 
Means of Egress, subpart E of part 1910 (61 FR 47712, September 10, 
1996). OSHA proposed to rewrite the existing requirements in plain 
language so that the requirements would be easier to understand by 
employers, employees and others who use them. The proposal did not 
intend to change the regulatory obligations of employers or the safety 
and health protection provided to employees, only to simplify the 
standard. The final rule was published on November 7, 2002 (67 FR 
67949). OSHA believed it accomplished the goals of maintaining the 
safety and health protections provided to employees without increasing 
the regulatory burden on employers, creating a regulation that is 
easily understood, and stating employers' obligations in performance-
oriented language to the extent possible. As a consequence of these 
changes, the Agency believes it has made subpart E more user-friendly 
to employees and employers. Compliance is generally improved when 
employers and employees fully understand a regulation.
    As a result of the Phase I Standards Improvement Project 
rulemaking, the Agency identified itself or through public comment 
other regulatory provisions that could be removed or revised to reduce 
regulatory burdens without diminishing employee safety and health. 
Those included amending provisions addressing notification of use, 
frequency of exposure monitoring and medical surveillance, and others 
that it believed were outdated, duplicative, unnecessary, inconsistent 
or could be clarified or simplified by being rewritten into plain 
language.
    On October 31, 2002, OSHA published the proposed Phase II of the 
Standards Improvement Project which would remove or revise a number of 
health and safety standard provisions (67 FR 66494). Also, OSHA 
requested comment from the public on any other similar provisions to 
those in the proposal that interested parties believed to be outdated, 
duplicative or unnecessary that could be included in a subsequent Phase 
III Standards Improvement Project.
    The Agency made a preliminary finding in the Phase II proposal that 
the proposed revision to the health standards would reduce the 
regulatory burden of employers without reducing the health protections 
the standards currently provide to employees and that some revisions 
would simplify and clarify requirements. These revisions would 
facilitate employer compliance and improve employee protection. OSHA 
also expressed its belief that the removal or revision of standards 
would in some cases reduce unnecessary

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collection of information burdens (e.g., paperwork burdens) on 
employers.
    In addition to affecting part 1910 standards in general industry, 
the Phase II proposed rule also affected a number of standards included 
in parts 1915, shipyard employment, and 1926, construction. In 
accordance with Agency procedures and requirements, the Advisory 
Committee on Maritime Safety and Health and the Advisory Committee on 
Construction Safety and Health were advised of the revised standards 
that affected their industries prior to the publication of the proposed 
standard. This information was presented to the Advisory Committee on 
Construction on September 2, 2000, and the Advisory Committee on 
Maritime on December 6, 2000.
    The comment period for the Phase II Standards Improvement Project 
proposal was to end on December 30, 2002. However, on January 6, 2003, 
in response to several requests the comment period was extended until 
January 30, 2003 (68 FR 1023). OSHA received 35 comments in response to 
the notice of proposed rulemaking. Also, in response to several 
requests to hold a public hearing to discuss the proposal, OSHA 
announced a public hearing on April 21, 2003 (68 FR 19472). OSHA held 
the public hearing on July 8 in Washington, D.C. OSHA staff testified 
and responded to questions and several members of the public testified. 
The administrative law judge scheduled the receipt of post hearing 
evidence on August 8, 2003, and post hearing briefs for September 10, 
2003. The judge received the post hearing documents and closed the 
hearing record on February 26, 2004. The hearing resulted in 59 pages 
of testimony. No post-hearing comments or briefs were received. 
However, OSHA inserted some post-hearing material in response to 
questions asked at the hearing (Ex. 9).

II. Summary and Explanation of the Final Rule

    This section contains an analysis of the record evidence and policy 
decisions pertaining to the various provisions of the final rule.
    In the proposed rule, changes to provisions included: Methods of 
communicating illness outbreaks in the temporary labor camps standard 
(29 CFR 1910.142); first aid kits for general industry in the medical 
services and first aid standard (29 CFR 1910.151) and the 
telecommunications standard (29 CFR 1910.268); laboratory licensing in 
the vinyl chloride standard (29 CFR 1910.1017); periodic exposure 
monitoring in the vinyl chloride (29 CFR 1910.1017), 1,2-dibromo-3-
chloropropane (DBCP) (29 CFR 1910.1044), and acrylonitrile (29 CFR 
1910.1045) standards; reporting the use of alternative control methods 
in the asbestos standards for shipyards (29 CFR 1915.1001) and 
construction (1926.1101); evaluating chest x-rays for inorganic arsenic 
(29 CFR 1910.1018) and coke oven emissions (29 CFR 1910.1029) 
standards; signing medical opinions in the asbestos standard for 
general industry (29 CFR 1910.1001) and the cadmium standards for 
general industry (29 CFR 1910.1027) and construction (1926.1127); and 
semiannual medical examinations in the vinyl chloride, inorganic 
arsenic, and coke oven emissions standards.
    Also included were proposed changes to the requirements to notify 
OSHA of certain events (e.g., a substance specific release or 
emergency) in the standard for 13 carcinogens (29 CFR 1910.1003), the 
vinyl chloride, inorganic arsenic, DBCP, and acrylonitrile standards; 
semiannual updating of compliance plans in the standards for vinyl 
chloride, inorganic arsenic, lead for general industry (29 CFR 
1910.1025) and construction (29 CFR 1926.62), DBCP, and acrylonitrile; 
and employee notification requirements in general industry standards 
for asbestos, vinyl chloride, inorganic arsenic, lead, cadmium, benzene 
(29 CFR 1910.1028), coke oven emissions, cotton dust (29 CFR 
1910.1043), DBCP, acrylonitrile, ethylene oxide (29 CFR 1910.1047), 
formaldehyde (29 CFR 1910.1048), methylenedianiline (29 CFR 1910.1050), 
butadiene (29 CFR 1910.1051), and methylene chloride (29 CFR 
1910.1052), and construction standards for methylenedianiline (29 CFR 
1926.60), lead, asbestos, and cadmium.
    Finally, although OSHA did not propose to delete the requirement to 
use social security numbers in a number of its exposure-monitoring and 
medical surveillance records, it requested comment on whether there was 
a need to continue to include an employee's social security number in 
these records.
    In the proposal, OSHA emphasized that the scope of the rulemaking 
was limited to removing or revising provisions that were outdated, 
duplicative, unnecessary, or inconsistent with similar provisions in 
other standards. In regard to ``inconsistent,'' the Agency specifically 
proposed to revise a number of OSHA's older standards (vinyl chloride, 
acrylonitrile, coke oven emissions, arsenic, and DBCP) to be consistent 
with the frequencies of exposure monitoring, medical surveillance, and 
compliance plan updates established in the majority of more recently 
promulgated standards. Comment was solicited on whether it would be 
appropriate to revise these older standards to be consistent with the 
newer standards.
    OSHA also noted that certain sections in part 1910 that were being 
addressed in the proposal are incorporated by reference in parts 1915, 
shipyard employment, and 1926, construction. Therefore, any changes to 
referenced sections in part 1910 would also apply to parts 1915 and 
1926.
    Many commenters expressed their views on the approach taken by OSHA 
in its Phase II Standards Improvement Project. Most commenters 
supported OSHA's approach and its efforts to remove or revise standards 
because they are outdated, duplicative, unnecessary, or inconsistent 
(Exs. 3-5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 22, 24, 25, 26, 28, 29; 
4-11, 12). For example, Phelps Dodge Corporation (Ex. 3-7) remarked 
that ``We support OSHA's continuing effort to remove or revise 
provisions of its standards that are outdated, duplicative, 
unnecessary, or inconsistent, and we welcome the opportunity to share 
our comments and suggestions.'' The National Institute for Occupational 
Safety and Health (NIOSH) (Ex. 3-9) noted its support for OSHA's 
efforts to ``reduce regulatory requirements for employers while 
maintaining worker safety and health by removing or revising provisions 
of standards that may be outdated, duplicative, or unnecessary.'' 
Another commenter, Organization Resources Counselors (Ex. 3-22), stated 
in its discussion regarding OSHA's elimination of collection of 
information (in this case, paperwork) requirements that:

    If OSHA no longer has need to collect the type of information 
required to be reported, or finds that the information provides no 
useful benefits for either enforcement of the standard or protection 
of employee health, the requirements should be deleted.

    On the other hand, some commenters expressed their concern with the 
manner in which OSHA was streamlining standards and in some cases on 
the use of its resources for this type of project (Exs. 3-4, 16, 17, 
18; 4-13; Tr. 38, 39, 46). The AFL-CIO (Tr. 29) observed that 
``Throughout this proposal, the Agency has consistently sought to 
streamline [standards] by reducing [them] to the lowest common 
denominator.'' The United Steelworkers of America (Ex. 3-16) stated 
that while ``this may reduce some administrative burdens on OSHA and 
industry, it is hard to see how worker protection has been improved by 
any of the changes.'' The Union of Needletrades, Industrial

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and Textile Employees (UNITE) (Ex. 3-18) remarked that it ``strongly 
opposes expenditures of agency staff time and other resources on so-
called `improvements' to OSHA's standards when urgent action on clear 
regulatory gaps remain unattended.''
    However, based on the rulemaking record and experience from the 
Phase I Standards Improvement Project, OSHA continues to believe that 
the removal or revision of outdated, duplicative, unnecessary, or 
inconsistent requirements and rewriting requirements into plain 
language will simplify and clarify regulatory requirements, facilitate 
compliance, and will lead to improved safety and health. In finalizing 
the proposal, OSHA has been careful to ensure that the protections 
afforded employees are not weakened. With respect to these goals, the 
American Industrial Hygiene Association (AIHA) (Ex. 3-6) stated:

    AIHA applauds OSHA's latest decision to move forward with Phase 
II of the project through this proposed rulemaking. As was the case 
with the first phase of this process, completed in 1998, we are 
confident that the latest proposed health standard revisions will 
meet with success in terms of reducing the regulatory burden of 
employers without reducing the health protection that these 
standards currently provide to employees.
    AIHA wishes to publicly go on record as supportive of OSHA's 
efforts to modernize these standards using a common sense approach. 
Not only will the proposed revisions simplify and clarify the 
requirements of the current health standards, but they will also 
facilitate employer compliance, improved employee protection and 
reduced regulatory burden--a ``win-win'' situation for health and 
safety advocates, employers and employees.

Additionally, Dow Chemical Company (Ex. 3-13) observed:

    Dow supports OSHA's efforts to streamline its existing standards 
and to remove unnecessary or inconsistent provisions. Improvements 
in consistency and practicality not only assist the regulated 
community in its compliance efforts but also benefit OSHA and all 
employees as the rules are easier to enforce and because employers 
can better identify what they need to do to comply. Thus, Dow 
applauds OSHA's continuing efforts to improve their standards. Dow 
believes that this same philosophy of improvement for consistency 
and practicality without compromising safety or health protections 
can also be made in other areas of standards addressed in the 
proposed rule.

    OSHA appreciates the time and effort expended by commenters in this 
rulemaking. The following is a provision by provision discussion of the 
changes OSHA has made in Phase II of the Standards Improvement Project.

A. Temporary Labor Camps, 29 CFR 1910.142

    Paragraph 1910.142(l)(2) of the temporary labor camp standard 
requires camp superintendents to report immediately to local health 
authorities ``by telegram or telephone'' the outbreak of specific 
illnesses and medical conditions among employees. With respect to this 
requirement, OSHA viewed the limitation to use a telegram or telephone 
to notify health authorities as too restrictive in this age of 
computers and the internet, and that other forms of communication 
should be permitted. In the notice of proposed rulemaking, OSHA 
proposed to delete the requirement to use a telegram or telephone for 
notification, but retain the requirement that camp superintendents 
immediately notify local health authorities of the outbreak any of the 
illnesses or medical conditions specified by the provision.
    OSHA received six comments regarding this proposal. All of the 
commenters (Exs. 3-4, 16, 17, 22, 27; 4-11) agreed that telegrams and 
telephones unnecessarily limit the method of reporting. A few 
commenters (Exs. 3-17, 27) expressed concern, however, that if there 
was no specification of the means of communication, slower means of 
notification such as by mail might be used. For example, the United 
Automobile, Aerospace and Agricultural Implement Workers of America 
(UAW) (Ex. 3-17) opposed the removal for fear that employers would use 
fourth class mail for reporting. The AFL-CIO (Ex. 3-27) expressed a 
similar concern that the proposed change leaves the provision entirely 
too vague and that employers could even use mail.
    In response to this concern, OSHA has decided rather than deleting 
the means of communication in the final rule, it would instead add 
additional language that would eliminate the possibility of using a 
slower means but permit equally fast means. OSHA concludes that any 
``fast method'' is appropriate. The final rule now states ``by 
telegram, telephone, electronic mail or any method that is equally 
fast.''

B. Reference to First Aid Supplies in Appendix A to the Standard on 
Medical Services and First Aid, 29 CFR 1910.151

    In the 1998 Phase I of the Standards Improvement Project (63 FR 
33450), OSHA revised paragraph 1910.151(b) of OSHA's standard for 
medical services and first aid to require that adequate first aid 
supplies be readily available at the workplace. To assist employers in 
meeting this requirement for what would be adequate first aid supplies, 
OSHA added a nonmandatory Appendix A to 29 CFR 1910.151, entitled First 
Aid Kits, that references a national consensus standard, the American 
National Standards Institute (ANSI) Z308.1-1978 standard, ``Minimum 
Requirements for Industrial Unit-Type First-aid Kits.'' The Agency 
believed that the information and reference to the ANSI standard in 
Appendix A to 29 CFR 1910.151 would provide employers with helpful 
information in selecting first aid supplies and containers appropriate 
to the medical emergencies and environmental conditions encountered in 
their workplaces.
    OSHA pointed out in the Phase I Standards Improvement Project 
preamble that ANSI was developing a revision of the Z308.1-1978 
consensus standard (63 FR 33461) and that OSHA planned to propose to 
revise Appendix A in Phase II to include the 1998 edition as long as 
the revision was as effective in protecting employees. In Phase II of 
the Standards Improvement Project, OSHA solicited comment and 
information on whether the revised ANSI Z308.1-1998, Minimum 
Requirements for Workplace First-aid Kits, consensus standard would 
provide equivalent or better protection to employees than the 1978 
edition. OSHA also inquired whether there were any other consensus 
standards or guidelines available for first aid kits that might be 
included in Appendix A.
    At the time of the Phase II of the Standards Improvement Project 
proposal, OSHA preliminarily found that the 1998 edition increased 
compliance flexibility by emphasizing performance-based requirements. 
OSHA also found that the 1998 edition provided employers with the 
information they needed to select first aid containers and fill items 
appropriate to the unique hazards in particular workplaces. OSHA 
believed that the ANSI 308.1-1998 edition would protect employees at 
least as well as the requirements of the 1978 edition.
    OSHA received 13 comments regarding this proposed change (Exs. 3-3, 
16, 17, 22, 24, 26, 27, 29; 4-6, 7, 8, 11, 13). Most commenters 
supported the Agency's updating of the ANSI 308.1-1978 edition to the 
1998 edition in the nonmandatory Appendix A. For example, Verizon 
Communications, Inc. (Ex. 3-24) supported the revision to the 1998 
edition because employers would have more flexibility and, therefore, 
would improve protection to employees. The Pinnacle West Capital Corp. 
(Ex. 4-7) observed that there have been changes in the medical 
profession since

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1978, and agreed that the 1998 edition provides equivalent to better 
protection to employees. One commenter, the AFL-CIO (Ex. 3-27), even 
suggested that OSHA update the reference but make Appendix A mandatory 
or enforce the ANSI standard under the general duty clause.
    In the final rule, the Agency has changed nonmandatory Appendix A 
to reference the ANSI 308.1-1998 standard. After reviewing the record 
evidence and based on OSHA's review of both the 1978 and 1998 editions, 
the Agency feels that the update to the 1998 edition will provide more 
compliance flexibility to employers while being as effective, or more 
effective, in the protection of employees. In its review of the 1998 
edition, the Agency found that:
     Regarding container requirements, the 1998 edition permits 
more compliance flexibility than the 1978 edition. For example, the 
1998 edition identifies three types of first-aid containers, types I, 
II, and III, designed for stationary indoor use, mobile indoor use, and 
mobile outdoor use, respectively, while the 1978 edition includes only 
two types of containers, (standard and special purpose, with special-
purpose containers designed for use under extreme conditions such as 
example, corrosive, nonsparking, nonmagnetic, or dielectric conditions.
     Requirements for the three types of containers identified 
in the 1998 edition are performance based, while the 1978 edition 
provides extensive specifications for each type of container.
     Unlike the 1978 edition, the conditioning and drop-test 
procedures described in the 1998 edition for types II and III 
containers, and the procedures for testing type III containers for 
corrosion and moisture resistance, specify the minimum number of 
containers required for testing.
     The 1998 edition specifies that each type III container 
subjected to drop testing must also undergo corrosion and moisture-
resistance testing to ensure the structural integrity of the container 
under severe moisture conditions. The 1978 edition appears to allow 
testing of different special-purpose containers under the drop- and 
moisture-testing conditions.
     Corrosion and moisture-resistance testing of type III 
containers under the 1998 edition requires exposure of the containers 
to simulated salt spray for 20 days in accordance with the provisions 
of American Society for Testing and Materials (ASTM) consensus standard 
B117 (``Operating salt spray (fog) operations''). The 1978 edition only 
requires exposure of a special-purpose container to fresh water for 15 
minutes.
     Regarding the content (fill items) of the containers, the 
1998 edition provides a short list of basic items needed to disinfect 
and cover wounds, including special items for treating burns. However, 
the 1998 edition lists optional fill items for use if an employer 
identifies workplace hazards that may inflict injuries not covered by 
the basic fill items. The 1978 edition has a single list of fill items, 
some of which are unnecessary for many emergencies (for example, 
forceps, metal splints, tourniquets). Additionally, the 1978 edition is 
missing several important fill items (for example, medical-examination 
gloves, cold packs).
     The 1998 edition requires color coding of unit packages 
that contain specific types of fill items (for example, yellow for 
bandages, blue for antiseptics), while the 1978 edition has no such 
requirement.
     The 1998 edition, more often than the 1978 edition, 
identifies fill items according to standardized testing and quality-
control methods. For example, the 1998 edition requires that absorbent 
compresses meet the water-absorbency criteria of ASTM consensus 
standard D117 (``Nonwoven fabrics''), and that antiseptics conform to 
the requirements specified by the Food and Drug Administration in 21 
CFR 333 (``Topical antimicrobial drug products for over-the-counter 
human use''). The 1978 edition provides no absorbency criteria for 
absorbent gauze compresses, while the antiseptic solution used for 
antiseptic swabs is required only to be ``acceptable to the consulting 
physician.''
    The Agency's review of the two editions demonstrated that, compared 
with the 1978 edition, the 1998 edition: Increases compliance 
flexibility by emphasizing performance-based requirements, including a 
choice of three containers and a list of basic and optional fill items; 
improves the procedures for conditioning and testing first-aid 
containers; and ensures the reliability and efficacy of the fill items 
by basing the selection of these items on standardized testing and 
quality-control methods. Based on this review, OSHA preliminarily found 
that the provisions of the 1998 edition would provide employers with 
the information they needed to select first-aid containers and fill 
items appropriate to the hazards in their workplaces that could injure 
employees. Consequently, the 1998 edition would protect employees at 
least as well as the requirements of the 1978 edition.
    The Agency believes that the 1998 edition of the ANSI standard is 
as protective to employees but increases compliance flexibility and, 
accordingly, has replaced the reference to the 1978 edition in Appendix 
A of Sec.  1910.151 with a reference to the 1998 edition. OSHA believes 
that appropriate guidance is contained in the 1998 edition for a 
variety of workplaces with different needs.
    Finally, although OSHA solicited information about other available 
consensus standards, no suggestions were received.

C. First Aid Supplies in the Telecommunications Standard, 29 CFR 
1910.268

    Paragraph 1910.268(b)(3) of OSHA's telecommunication standard 
requires an employer to: Provide first aid supplies (fill items) 
recommended by a consulting physician; ensure that the fill items are 
readily accessible and housed in weatherproof containers if used 
outdoors; and inspect the fill items at least once a month and replace 
expended items. In the proposal, OSHA proposed to revise paragraph 
1910.268(b)(3) to read, ``Employers must provide employees with readily 
accessible, and appropriate first aid supplies. An example of 
appropriate supplies is listed in non-mandatory Appendix A to Sec.  
1910.151.''
    In Phase I of the Standards Improvement Project, OSHA removed from 
paragraph 1910.151(b) of the medical services and first aid standard, 
the requirement that a consulting physician approve first aid supplies 
because it determined that commercial first aid kits are readily 
available and would meet the needs of most employers (61 FR 37850). 
OSHA noted that employers may have to enhance their first aid kits if 
unique or changing first aid needs exist in their workplaces. OSHA 
advised employers in Appendix A that if they had unique needs to 
consult with the local fire/rescue departments, appropriate medical 
professionals, or a local emergency room for help. Also, OSHA advised 
employers that they should assess the specific needs of their worksite 
periodically and augment the first aid kit accordingly.
    In this proposal, the Agency preliminarily concluded that revising 
the telecommunication standard to reflect the general industry first 
aid requirements would be appropriate. The Agency received ten comments 
(Exs. 3-4, 16, 17, 22, 24, 27, 29; 4-6, 8, 11) concerning this proposed 
revision to the telecommunications standard. A few commenters (Exs. 3-
4, 16, 17, 27) indicated that they believed the revision would reduce 
employee protection. For example, commenters believed that

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deleting the requirement to inspect kits monthly to replace used items 
would increase the likelihood of deficient kits. Another commenter was 
concerned that there would no longer be a requirement for weatherproof 
kits.
    However, other commenters supported the proposed changes (Exs. 3-
22, 24, 29; 4-6, 8, 11). For example, the American Chemistry Council 
(Ex. 3-29) indicated that it supported the change to reflect present-
day realities in the first aid supplies market and also supported the 
removal of the requirement for a physician's approval for supplies.
    The Agency has concluded that substituting the guidance of 
nonmandatory Appendix A to 29 CFR 1910.151 for the requirements 
specified in paragraph 1910.268(b)(3) will reduce the regulatory burden 
on employers in the telecommunication industry by increasing their 
flexibility in meeting OSHA's requirements for first aid kits, allow 
employers to purchase off-the-shelf first aid kits, and will facilitate 
compliance by making the requirements to provide first aid kits 
consistent across the general industry standards. The Agency believes 
that the revision affords telecommunication employees at least the same 
level of protection they currently receive because Appendix A to 29 CFR 
1910.151 provides more extensive guidelines for selecting appropriate 
medical first aid supplies than paragraph 1910.268(b)(3) and further, 
provides the recommendation that these supplies include personal 
protective equipment to prevent employee exposure to bloodborne 
pathogens. Finally, OSHA believes that deleting the requirement for a 
monthly inspection and weatherproof first aid kits does not reduce 
employee protection. First aid kits must be complete and contain the 
supplies necessary for the worksite. If upon inspection by an OSHA 
compliance officer, a first aid kit was found to be deficient because 
the supplies were depleted or water damaged, a citation could be issued 
because the first aid supplies would not be considered adequate or 
``appropriate.'' OSHA has concluded that the mandatory requirement to 
have appropriate and accessible first aid kits maintains employee 
protection.

D. 13 Carcinogens, 29 CFR 1910.1003

    In the 13 Carcinogens standard, paragraph 1910.1003(f)(2) requires 
employers to provide the nearest OSHA Area Director with two separate 
reports on the occurrence of any incident that results in a release of 
any of the 13 carcinogens into any area where employees may be 
potentially exposed. The reports consist of (1) an abbreviated 
preliminary report submitted within 24 hours of the carcinogen release 
and (2) a detailed report submitted within 15 calendar days of the 
incident. In the proposal, OSHA expressed its belief that these reports 
were of little or no value to OSHA and were therefore creating an 
unnecessary burden on employers. More recent substance-specific 
standards including carcinogenic chemicals such as methylene chloride 
developed by the Agency do not contain any such reporting requirements. 
Because of these reasons, OSHA proposed to delete the requirement from 
the standard to reduce reporting requirements because the reports were 
unnecessary. OSHA requested comment on the extent to which the revision 
would reduce the reporting burden on employers and the effect the 
deletion would have on employee health.
    OSHA received nine comments in response to the proposal to 
eliminate the carcinogen standard reporting requirements (Exs. 3-4, 16, 
17, 18, 22, 27, 29; 4-11, 13). Three commenters agreed with the removal 
of the requirement (Exs. 3-22, 29; 4-11). The other commenters (Exs. 3-
4, 16, 17, 18, 27; 4-13) objected to the removal of the reporting 
requirement. These commenters opposed the removal because: (1) The 
deletion would reduce worker protection because reporting gives useful 
information to OSHA by alerting it to workplace deficiencies; (2) the 
information helps management avoid future spills, and; (3) the 
information induces managers to take spills more seriously.
    At the hearing OSHA was asked by a representative from the AFL-CIO 
(Tr. 16) about how many reports on spills OSHA had received under the 
current regulations. Responses from the OSHA regional offices indicated 
that few reports are received and those that are received are not used 
for inspection purposes (Ex. 9). Although a few OSHA staff believed 
that incidence reports might be useful, that has not been the case. 
Further, OSHA has a general requirement to report incidents that cause 
death or serious injury (29 CFR 1904.39). That provision is used by 
employers and OSHA and it does trigger compliance inspections.
    The purpose for collecting these reports was to assist OSHA in 
identifying workplaces for inspection. OSHA has not used these reports 
over the years for this purpose and relies on other means to identify 
establishments to inspect. Further, the commenters provided no evidence 
that the reporting requirements serve to help management avoid future 
spills or to entice managers to take spills more seriously. In 
addition, the substances covered by this requirement are primarily 
chronic toxins and a single spill does not necessarily indicate a 
severe hazard requiring notification. Therefore, OSHA continues to 
believe that the reports have not proven to be useful and are an 
unnecessary employer burden since OSHA does not use them for 
identifying workplaces for inspection. In addition, under the Paperwork 
Reduction Act, agencies need to review their requirements to identify 
those that serve no purpose and if they do not serve any purpose, then 
consider removing them. Therefore, OSHA has eliminated the reporting 
requirements. OSHA is not aware of any reason that the elimination of 
the reports will reduce employee safety since OSHA does not use the 
reports.

E. Vinyl Chloride, 29 CFR 1910.1017

    Paragraph 1910.1017(k)(6) of the vinyl chloride standard specifies 
that clinical laboratories licensed by the U.S. Public Health Service 
under 42 CFR part 74, must analyze biological samples collected during 
medical examinations. However, 42 CFR part 74 is outdated, and the 
Public Health Service now addresses laboratory-licensing requirements 
under 42 CFR part 493, laboratory requirements. Therefore, the Agency 
proposed to delete the reference to 42 CFR part 74 from the vinyl 
chloride standard. In the proposal, OSHA asked for comment on: (1) The 
need to specify a licensing or quality-control requirement; (2) the 
extent to which the requirements specified by 42 CFR part 493 would be 
a substitute for the outdated requirements; and (3) whether any other 
reference or criteria were available that could serve this purpose.
    OSHA received eight comments on the proposed deletion of the 
requirement for a Public Health Service licensed laboratory to analyze 
biological samples collected during medical exams relative to vinyl 
chloride exposure (Exs. 3-4, 8, 16, 17, 27, 29; 4-11, 13). The Vinyl 
Institute (Ex. 3-8) supported the deletion of the provision entirely 
because they saw no current need for specifying licensing or quality-
control of laboratories. The other seven commenters expressed their 
belief that paragraph 1910.1017(k)(6) should not be changed without 
either adding language offering equal or greater protection to workers 
or updating the reference to the new Public Health Service laboratory 
requirements (Exs. 3-4, 16, 17, 27, 29; 4-11, 13).

[[Page 1117]]

    One commenter (Ex. 3-16) observed that this type of requirement, 
laboratory licensing, was an example of the kind of requirement that 
would be best dealt with by a generic medical monitoring standard which 
could address laboratory certification for all standards.
    Based on the comments OSHA does not believe in this case that it is 
appropriate to reference outdated regulations, or that it would be 
appropriate to reference the new PHS standards. However, it is 
appropriate for OSHA to require employers use qualified laboratories 
for required medical tests. Other OSHA health standards have assured 
that qualified laboratories are used by requiring that employers use 
accredited laboratories. For example, the Bloodborne Pathogens standard 
[1910.1030(f)(iii)], the Benzene standard [1910.1028(i)(1)(ii)], the 
Cadmium standard [1910.1027(l)(1)(iv)] and the Lead standard for 
General Industry [1910.1025(j)(2)(iii)] require that medical tests be 
performed by accredited laboratories. There are several organizations 
that accredit laboratories. Each requires that laboratories implement 
quality control procedures to maintain accreditation. Therefore, OSHA 
has changed paragraph 1910.1017(k)(6)of the vinyl chloride standard to 
require the use of accredited laboratories for the medical tests 
required in paragraph (k)(1) of the standard.

F. Monthly and Quarterly Exposure Monitoring

    Several of the Agency's older standards have provisions that 
require employers to monitor employee exposures either monthly or 
quarterly, depending on the level of a toxic substance found in the 
workplace.
    Paragraphs 1910.1017(d)(2)(i) and (d)(2)(ii) of the vinyl chloride 
standard require employers to conduct exposure monitoring at least 
monthly if employee exposures are in excess of the permissible exposure 
limit (PEL) and not less than quarterly if employee exposures are above 
the action level (AL).
    Paragraphs 1910.1044(f)(3)(i) and (f)(3)(ii) of the DBCP standard 
specify that employers perform exposure monitoring at least quarterly 
if employee exposures are below the PEL and no less than monthly if 
employee exposures exceed the PEL.
    Paragraphs 1910.1045(e)(3)(ii) and (e)(3)(iii) of the acrylonitrile 
standard requires employers to conduct exposure monitoring at least 
quarterly for employees exposed at or above the AL, but below the PEL, 
and at least monthly for employees having exposures above the PEL.
    The preambles to these older standards do not clearly explain the 
basis for adopting these monitoring frequencies. This absence of clear 
explanation suggests that OSHA likely relied on prevailing practice at 
the time for these older standards in establishing the frequencies. In 
substance-specific standards promulgated after these standards, 
exposure monitoring is required: (1) No more often than semiannually if 
employee exposures are at or above the AL and (2) no more than 
quarterly if employee exposures are above the PEL.
    OSHA proposed to amend the exposure monitoring requirements 
specified in the vinyl chloride, acrylonitrile, and DBCP standards 
because they are inconsistent with the exposure monitoring protocols 
established by OSHA in its later substance-specific standards. OSHA 
believes that consistency among standards would increase compliance and 
because the Paperwork Reduction Act directs agencies to reduce 
paperwork burdens, OSHA therefore proposed to revise these paragraphs 
to make them consistent with the similar requirements pertaining to 
exposure monitoring in more recently promulgated health standards. That 
exposure monitoring is: (1) At least quarterly if the results of 
initial exposure monitoring show that employee exposures are above the 
PEL; and (2) no less than semiannually if the results indicate 
exposures that are at or above the AL. OSHA asked for comment on the 
extent, if any, to which the revision would reduce the protection 
afforded by the existing standards to employees exposed to vinyl 
chloride, acrylonitrile, and DBCP. OSHA also requested comment on the 
extent to which the proposed revisions would reduce employer burdens, 
including cost and collection of information (i.e., paperwork) 
reductions.
    OSHA received 14 comments on modifying the exposure monitoring 
requirements (Exs. 3-4, 8, 10, 12, 13, 14, 16, 17, 18, 27, 29; 4-11, 
12, 13). Seven commenters supported consistency in exposure monitoring 
for one or all of the substances (Exs. 3-8, 10, 13, 14, 29; 4-11, 12). 
Dow Chemical Company (Ex. 3-13) observed that ``Consistency in 
monitoring requirements reduces employer burdens and enhances 
compliance while maintaining employee health protections.'' The 
American Chemical Council (Ex. 3-29) stated:

    ACC concurs that exposure monitoring should be consistent among 
the Agency's standards. The proposed revisions to Sec.  1910.1044 
and Sec.  1910.1045 will help to unify the requirements for exposure 
monitoring. Further unification of the exposure monitoring 
requirements will enable employers to have one monitoring strategy 
that can be applied for all substances, rather than keeping track of 
the differences between the varying standards.

    The American Society of Safety Engineers (Ex. 4-11) remarked that 
the ``revision will assist companies in implementing more uniform 
industry hygiene programs. Also, there is no demonstrated need for more 
frequent exposure monitoring these substances.''
    The American Foundry Society (Ex. 3-12) expressed its view that the 
exposure monitoring change does not go far enough. The commenter 
stated:

    The proposed revision * * * to go from monthly to quarterly and 
from quarterly to semiannual does not go far enough. While 
monitoring of potential employee exposure is essential to maintain 
employee health and exposure monitoring as part of an engineering 
study may be necessary to determine the source and magnitude of 
exposure, periodic monitoring for its own sake imposes an 
unnecessary and possibly punitive burden on employers and employees 
unless there is some benefit to employee safety and health.
    Once it has been determined that employees are exposed above an 
Action Level or Permissible Exposure Level, additional monitoring 
provides no additional useful information, unless it is part of an 
engineering study. Simply conducting exposure monitoring for its own 
sake wastes valuable health and safety resources and builds 
resentment among employees who must wear sampling equipment without 
justification.
    We strongly urge OSHA to modify the requirement in all health 
standards, now and in the future, to base the frequency of exposure 
monitoring on the need to establish employee exposure levels or to 
achieve some other useful safety and health objective. Of course, 
additional exposure monitoring should be conducted when work 
processes or practices change or there are good industrial hygiene 
or engineering reasons to conduct such monitoring.

    Six commenters disagreed with the proposed changes (Exs. 3-4, 16, 
17, 18, 27; 4-13). For example, the Paper Allied-Industrial, Chemical 
and Energy Workers Union (PACE) (Ex. 3-4) stated:

    * * * For these selected agents which have well-established 
toxicity, it is wholly inappropriate to ask employees whose exposure 
monitoring shows that they are exposed at levels above the 
permissible exposure limit to wait an addition 3 months to find out 
whether these exposures have been reduced. Likewise for employees 
whose exposures are above the action level, they should not have to 
wait six months to learn

[[Page 1118]]

whether their exposures have been reduced below that level.

The United Steel Workers of America (Ex. 3-16) remarked:

    When the three standards in question were written, it was 
assumed that most employers would come into compliance in a 
reasonable amount of time. Indeed, most have--by better controls in 
the case of vinyl chloride and acrylonitrile, by a phase-out of the 
chemical in the case of DBCP. Now OSHA proposes to reward those 
employers who have not achieved compliance. These changes will 
impair worker protection, and are not supported by evidence in the 
record.

Also, the International Chemical Workers Union (Ex. 4-13) observed:

    We do not believe that a change to these standards is justified. 
Each rule and requirement went through the rulemaking process at the 
time, weighing all available evidence. Again, just because later 
rules, for different chemicals with different hazards, controls and/
or toxicities have different requirements, do not provide adequate 
justification for a change in monitoring frequencies. OSHA needs to 
provide additional information which gives a valid justification for 
change before proposing such changes.

    The standards for vinyl chloride, acrylonitrile, and DBCB are among 
the oldest of OSHA health standards. As the United Steel Workers of 
America noted, most employers have come into compliance. Those 
employers who have not been able to achieve compliance through feasible 
engineering controls are required to protect their employees by using 
personal protective equipment. Those employers who have not been able 
to reduce worker exposures have collected hundreds of samples since the 
effective dates of these standards. Very high monitoring frequencies 
will not add appreciably to the statistical confidence an employer will 
have in the conclusion that employees' exposures exceed a permissible 
exposure limit or action level. Monitoring quarterly and semiannually 
will protect employees by allowing time to improve the workplace, while 
still producing suitably current information to employers and 
employees. When employers are over the action level or exposure limit, 
periodic monitoring is required to assure that proper respirators and 
personal protective equipment are worn.
    Moreover, OSHA concludes, after reviewing the comments, that 
uniformity of monitoring frequency is beneficial for employers and 
employees (unless there are specific reasons for different frequency) 
because uniformity permits an employer to develop a more efficient and 
thus, better, industrial hygiene program and to increase compliance by 
improving understanding of health standards. In addition the Paperwork 
Reduction Act requires OSHA to consider reduction in paperwork burden 
when that will not interfere with worker protection.
    OSHA notes that two of its standards, 29 CFR 1910.1028 and 
1910.1051, benzene and 1,3-butadiene respectively, provide for exposure 
monitoring frequencies different from the quarterly and semiannual 
monitoring contained in other standards. The Agency is not revising 
benzene or 1,3-butadiene with respect to monitoring frequencies because 
the exposure monitoring provisions in those standards have specific 
bases in their rulemaking records that preclude changing them for 
consistency under this standards improvement action. (See e.g. 52 FR 
34533-41, September 11, 1987.)

G. Alternative Control Methods for Class I Asbestos Removal

    Provisions in OSHA's asbestos standards for shipyard employment and 
construction, paragraphs 1915.1001(g)(6)(iii) and 1926.1101(g)(6)(iii), 
respectively, address alternative control methods used to perform Class 
I asbestos work. Specifically, the paragraphs require an employer to 
send an evaluation and certification of alternative control methods to 
OSHA's Directorate of Technical Support before removing more than 25 
linear feet or 10 square feet of thermal-system insulation or surfacing 
material respectively.
    The purpose of this collection of information was for OSHA to 
develop a database of alternative control methods for use in future 
rulemaking. However, OSHA has not developed a database of alternative 
control methods nor does OSHA plan a future rulemaking to do so. 
Therefore, OSHA in the proposal said that these requirements are not 
useful and are not in keeping with the Paperwork Reduction Act. Current 
OSHA regulatory policy requires that paperwork provisions, such as 
this, be a benefit to employee health or serve some other useful 
regulatory purpose. Since certification of alternative control methods 
does not meet this requirement, the Agency proposed to delete it from 
the shipyard and construction asbestos standards. OSHA invited comment 
on any regulatory benefit or purpose that removal of this requirement 
would jeopardize.
    Eight commenters addressed the removal of these paragraphs (Exs. 3-
4, 16, 17, 24, 25, 27; 4-7, 11). Some commenters (Exs. 3-24; 4-7, 11) 
agreed with their deletion because OSHA has never used the information 
to develop a database. Other commenters (Exs. 3-4, 16, 17, 27) 
suggested rather than simply deleting the requirements, OSHA should 
enforce the requirement and start a database of alternative control 
methods which could be useful in rulemaking and to employers and 
employees seeking methods of abatement. Finally, the Associated General 
Contractors of America (Ex. 3-25) expressed concern that the change 
would eliminate contractors' abatement options and lead to increased 
delays to contractors and building owners because no simple 
substitution process would be available to submit alternatives. In 
response to this concern, OSHA would like to make it clear that the 
removal of these requirements does not disallow the use of alternative 
control methods since the submission of alternative control methods to 
OSHA did not constitute approval of the methods.
    As stated, the intent of this collection of information was for 
OSHA to develop a database of alternative control methods, but no such 
database was developed. Further, OSHA has no future plans to expend its 
limited resources on developing a database. As to development or 
availability of alternative control methodologies, there are many 
competent asbestos abatement contractors and consultants available to 
employers so it is not necessary for OSHA to research these issues or 
collect information on them. Therefore, OSHA has deleted the 
requirement in the shipyard employment and construction standards, 
because it is an unnecessary and burdensome collection of information.

H. Evaluating Chest X-rays Using the ILO U/C Rating

    OSHA proposed to amend paragraph 1910.1018(n)(2)(ii)(A) of the 
inorganic arsenic standard and paragraph 1910.1029(j)(2)(ii) of the 
coke oven emissions standard that require employees' chest x-rays 
receive an International Labor Office UICC/Cincinnati (ILO U/C) rating. 
Subsequent to the promulgation of these provisions, the Agency received 
information from two physicians that the ILO U/C rating is not suitable 
to evaluate chest x-rays for lung cancer, the possible outcome of 
exposure to these chemicals. Regarding the use of the ILO U/C ratings 
specified by the inorganic arsenic standard, Stephen Wood, MD, MSPH, 
Corporate Medical Director for the Kennecott Corporation, states in a 
letter to OSHA (Ex. 1-1):

    This method of x-ray interpretation was designed specifically 
for use in pneumoconiosis or dust related disease. Arsenic does not 
cause pneumoconiosis. This

[[Page 1119]]

classification system is unnecessary for cancer surveillance and 
represents a substantial cost and logistical burden to industry.

Later, Steven R. Smith, MD, Director of Occupational Health and 
Occupational Medicine, Community Hospitals Indianapolis, wrote to the 
Agency (Ex. 1-2) addressing the ILO U/C rating required by the coke 
oven emissions standard:

    I am sure you know that the main pulmonary problem with coke 
oven emission exposure is carcinoma of the lung and not 
pneumoconiosis. The main merit of the ILO U/C rating system is that 
it standardizes the reading of films where there are parenchymal 
opacities either round nodules or linear densities. For the problem 
of carcinoma of the lung this system really has little to add over 
the proper interpretation of films by skilled radiologists. I think 
it is of much more importance that the chest films done as part of 
the coke oven emissions exposure surveillance be interpreted by 
expert radiologists who are aware of the fact the films are being 
done primarily for pulmonary carcinoma. To require that an ILO U/C 
rating system be employed as well seems to me as though it is going 
to necessitate an additional expense as well as to greatly limit the 
number of radiologists who are able to interpret such films.

    Based on these letters and on the opinion of OSHA's Office of 
Occupational Medicine, the Agency believed that the ILO U/C rating is 
not a suitable method to use in evaluating chest x-rays for lung 
cancer. Therefore, the Agency proposed to remove the ILO U/C rating 
requirements specified in the inorganic arsenic and coke oven emissions 
standards, thereby permitting the examining physician to determine the 
most effective procedure for evaluating the chest x-rays. This approach 
is similar to that taken in recent Agency standards that require the 
evaluation of chest x-rays for cancer (e.g., paragraph 
1910.1027(l)(4)(ii)(C) of the cadmium standard). As part of the cadmium 
rulemaking, OSHA solicited comment and other information regarding the 
suitability of the ILO U/C ratings for evaluating chest x-rays for 
cancer, the identity of any other available method or procedure that 
could effectively substitute for ILO U/C ratings, and the safety and 
efficacy of the proposed elimination of the requirement.
    OSHA received nine comments in response to this proposed change 
(Exs. 3-7, 9, 16, 17, 27, 28, 29; 4-7, 11). Some commenters agreed 
(Exs. 3-7, 28, 29; 4-7, 11) that the rating requirement should be 
deleted because the method was not appropriate to evaluating chest x-
rays for lung cancer. The American Coke and Coal Chemical Institute 
(Ex. 3-28) stated:

    ACCCI concurs with the Agency's research and rationale that the 
ILO-U/C rating is not suitable for proper evaluation of standard 
posterior-anterior chest x-rays, as this designation does not 
promote proper lung cancer surveillance. In addition to the 
additional cost burden it imposes on employers, the requirement also 
delays the reading response time, due to the extremely limited 
number of radiologists qualified to render such an interpretation.

Pinnacle West Capital Corp (Ex. 4-7) indicated that its medical 
consultant saw no detriment to employee protection if the requirement 
was deleted.
    Some commenters (Exs. 3-9, 16, 17, 27) whether they agreed with or 
opposed the removal of the rating, believed substitute language should 
be added and suggested what that language might be. For example, the 
United Steel Workers of America (Ex. 3-16) agreed that the rating is of 
little use for carcinogens but suggested that OSHA substitute the 
rating requirement with one that the radiologist be certified by the 
American Board of Radiologists to ensure qualified radiologists are 
used. The AFL-CIO (Ex. 3-27) observed that the use of the rating 
provided some quality control. To remedy the problem, the AFL-CIO 
suggested that x-rays be read by NIOSH certified B readers.
    OSHA has decided to eliminate the part of the provisions in arsenic 
and coke oven emissions requiring the ILO U/C rating because the rating 
is appropriate only for pneumoconiosis and is not useful for lung 
cancer. OSHA agrees with commenters who noted that the rating method is 
not appropriate for diagnosing cancer, its intended purpose. First, it 
is clear that the specified rating method is inappropriate because it 
addresses dust inhalation and resulting pneumoconiosis, a problem 
unrelated to arsenic and coke oven emissions. The rating is not 
appropriate for identifying cancer, the primary concern with respect to 
these substances. Second, OSHA has no reason to believe that the 
elimination of an inappropriate rating method will result in the use of 
unqualified radiologists under the medical surveillance programs of 
employers and does not believe it is necessary to add any other 
language to the provision. OSHA has decided based on the rulemaking 
record, to delete the requirement and does not believe that the 
deletion will decrease employee health since the method is not even 
appropriate to diagnosing the substances' likely disease outcome, 
cancer.

I. Signed Medical Opinions

    OSHA proposed to remove several requirements for medical opinions 
to be signed. (The requirement that a medical opinion be obtained by 
the employer was not affected by the proposed revision concerning a 
signature.) Paragraph 1910.1001(l)(7)(i) of the asbestos standard, and 
paragraphs 1910.1027(l)(10)(i) of the general industry cadmium standard 
and 1926.1127(l)(10)(i) of the construction industry cadmium standard, 
require that the examining physician sign the written medical opinion 
provided as part of the medical-surveillance requirements of these 
standards. The preamble to the cadmium standards states that the 
purpose of requiring the physician to sign the opinion is to ensure 
that the information that is given to the employer has been seen and 
read by the physician and that the physician has personally determined 
whether the employee may continue to work in cadmium-exposed jobs (57 
FR 42366). No other substance-specific standards promulgated by OSHA 
requires that the physician sign the medical opinion.
    The Agency expressed its belief in the proposal that the 
requirement for a physician to sign a medical opinion is unnecessary, 
precludes electronic transmission of the opinion from the physician to 
the employer, and provides no additional benefit to employees. 
Accordingly, OSHA proposed to remove the requirement from these 
standards. The Agency requested comment on whether a signed medical 
opinion is necessary to ensure that the examining physician has 
reviewed it prior to submitting it to the employer.
    OSHA received 11 comments concerning the elimination of the 
requirement for a physician's signature on a medical opinion (Exs. 3-3, 
4, 7, 16, 17, 22, 24, 26, 27; 4-7, 11). Seven commenters saw no need or 
reason for the signature (Exs. 3-3, 7, 22, 24, 26; 4-7, 11). For 
example, Phelps Dodge Corp. (Ex. 3-7) agreed that the requirements 
provide no added benefit and given current communication techniques, 
requiring signed medical opinions actually slows the process of 
completing the medical evaluation. The American Society of Safety 
Engineers (Ex. 4-11) stated that it ``supports this change because it 
permits the use of new technology, which is generally accepted in the 
business and medical field, and will minimize paperwork burdens and 
reduce delays receiving such reports, thereby enhancing safety and 
health.''
    Four commenters objected to deleting the requirement for a 
physician's signature on the medical opinion (Exs.

[[Page 1120]]

3-4, 16, 17, 27). The views expressed by these commenters include: (1) 
Physicians should take responsibility for their opinions; (2) employees 
place greater weight on opinions signed by physicians; and (3) 
providing signed opinions requires minimal effort. These commenters 
generally agreed that if OSHA wanted to allow for electronic 
transmission, then the provision should be revised to allow electronic 
signatures.
    OSHA does not believe that requiring a physician's signature on the 
required comprehensive medical opinion has any impact on the validity 
of the medical opinion. With or without a signature, the opinion is 
given by a physician through the physician's office leaving no doubt 
about responsibility for the opinion. Employees receiving the 
physician's opinions will see that the physician's name on his or her 
stationery sets forth the legitimacy of the report and the identify of 
the responsible physician. Further, OSHA believes that an actual 
physician's signature or a physician's electronic signature does not 
guarantee that the physician has read the opinion, making these 
signature requirements ineffective. The important part of the 
requirement is that a medical opinion is given. OSHA does not believe a 
signature establishes any greater validity to the medical opinion 
whether it is signed personally or electronically and has concluded 
that deleting the signature will not decrease employees' health 
protections.

J. Providing Semiannual Medical Examinations to Employees Experiencing 
Long-Term Toxic Exposures

    Three of the Agency's oldest health standards specify that 
employers provide semiannual medical examinations to employees having 
long-term exposures to the toxic substances regulated by these 
standards. However, these standards, which regulate employee exposures 
to vinyl chloride, inorganic arsenic, and coke oven emissions (29 CFR 
1910.1017, 1910.1019, and 1910.1029, respectively), require employees, 
exposed for lesser periods, be given annual medical examinations.
    Under paragraph 1910.1017(k) of the vinyl chloride standard 
employers must institute a medical surveillance program including a 
physical examination for employees exposed in excess of the action 
level. For employees exposed above the action level and who have been 
employed in vinyl chloride or polyvinyl chloride manufacturing for 10 
years or longer, employers must provide a semiannual medical 
examination (paragraph 1910.1017(k)(2)(i)). The preamble to this 
standard provides no rationale for this requirement.
    Paragraph 1910.1018(n)(3)(i) of the inorganic arsenic standard 
requires that employers offer semiannual medical examinations to 
employees who are 45 years or older who have been exposed above the 
action level for 30 days per year or who have been exposed above the 
action level to inorganic arsenic for at least 10 years. In justifying 
this requirement, the Agency indicated in the preamble to this standard 
that:

    Long-term employees who have exposures now or in the near future 
below the action level, but have had exposure above the action level 
now or in the recent past, are quite likely to have had 
substantially greater exposures in the more distant past. The 
epidemiological studies indicate that risk increases with both 
degree and duration of exposure (43 FR 19620).

OSHA notes that this statement addressed high exposures that occurred 
prior to the 1970's.
    Paragraphs 1910.1029(j)(3)(ii) and (j)(3)(iii) of the coke oven 
emissions standard require employers to provide semiannual medical 
examinations for employees who are at least 45 years of age, or have 
five or more years of employment in a regulated area, and for an 
employee in this age/experience group who transfers or is transferred 
from employment in a regulated area, for as long as that employee is 
employed by the same employer or a successor employer. In the preamble 
to this standard, the Agency explains this requirement by stating that 
the high risk population requires more frequent and more comprehensive 
testing than the remaind